This is a post about avoiding a certain kind of dispute with your employer, rather than winning it.

Section 11(2) of the Copyrights Designs and Patents Act 1998 reads:

Where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary.

Employees often learn from their employment, and may produce work – articles, books, computer programmes – that draws on their working experience and makes use of it. Section 11(2) means that if your employment contract is silent on the subject of intellectual property, your employer may own the copyright in material of this kind that you produce during working time.

That much will often be fair enough. If you want to ensure that intellectual property in any particular material or kind of material remains with you, one possibility is to make sure that you create it in your own time, and (to avoid any room for dispute) away from your workplace. If you create something in your own time that you want to use for the purposes of your employment, make it clear at the time, preferably in writing, that it is work created in your own time that you are prepared to use for your employer’s benefit.

Alternatively, you may want to negotiate for a specific agreement in your contract contrary to section 11(2) that makes it clear that all intellectual property generated by you is yours unless it is created at your employer’s behest and for the purposes of your employer’s business.

Unfortunately, some employers try to include in employment contracts much more comprehensive terms that purport to grab the intellectual property in any work of any conceivable use to the employer that the employee may create during the life of the employment contract, whether or not during working time or using the employer’s equipment, and whether or not it is any part of the purpose of the employment to create intellectual property for the employer.

Clauses of this kind are objectionable. Employment does not give the employer the rights of an owner: that is something different, known as slavery. An employee should be entitled to learn from his experience and develop his skills, and put his skills and experience to use for his own benefit in his own time.

If you see a clause of this nature in your draft contract of employment then, unless you are sure you won’t be creating any intellectual property anyway, you should challenge it. (You should probably challenge it anyway, because letting your new employer get away with nonsense is liable to set the employment relationship off on the wrong footing.) Most employers won’t mean it in fact: if it is there, it is probably because someone working for their lawyers years ago thought it was a hard-nosed kind of clause to include in a precedent, and no-one has given it any thought since. Once you point out what it means, most employers will have the grace to blush and withdraw it.

The two sides in an employment tribunal case are normally required to disclose to each other all the documents they have that are relevant to the dispute. An important exception to this rule is ‘privileged’ documents: that is, communications with their lawyers for the purposes of legal advice (‘legal professional privilege’) and communications or documents created for the purposes of pursuing or defending the claim (‘litigation privilege’). (For a fuller explanation, see paragraphs 4.29-4.36 of the book.)

Legal professional privilege is often particularly important. Your employers may have gone to their lawyers when you first made your request for reasonable adjustments – for example – and asked ‘Do we have to do this? Can’t we just sack her if she can’t do the job any more?’ Their lawyers may have written them a long sorrowful letter of which the gist is ‘Unfortunately not: there’s this really annoying bit of legislation called the Disability Discrimination Act. You will have to go through the motions at least.’

Obviously if the Tribunal was shown this correspondence, it could help you win your case, so you’d like to get your hands on it. But normally you’re not entitled to, because it is privileged.

Employers can be careless, though, about accidentally waiving privilege. If they mention the legal advice that they have received in their witness statement, they may have waived their legal professional privilege and given you the chance to demand to see the advice. If, for example, they say something like “We took legal advice on our duties under the DDA, and we followed it to the letter,” you can ask the tribunal to order them to disclose that advice to you.

You may want to rely on either or both of the following quotes:

Paragon Finance v Freshfields [1999] 1 WLR 1183, 1188 C-D (Lord Bingham):

‘A client expressly waives his legal professional privilege when he elects to disclose communications which the privilege would entitle him not to disclose. Where the disclosure is partial, issues may arise on the scope of the waiver. Practical difficulties occur in determining such issues…. But the law is clear. While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result.’

Nea Karteria Maritime Co Ltd v Atlantic & Great Lakes Steamship Corporation, quoted by Waller LJ in Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901 at paragraph 11:

‘Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to relase from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice.’

Be prepared for a tussle if you make a request of this nature. Not all employment tribunal judges will have the rules about waiver of privilege at their fingertips, and employers and their lawyers are likely to oppose the application vigorously. So go armed with full copies of the authorities, and explain carefully why you say privilege has been waived in your case. You might also want to take copies from Phipson on Evidence (16 ed. Sweet & Maxwell 2005) paragraphs 26-15 and 26-16. (You are likely to need to get access to a law library for this. Phipson is a difficult, dense book written for practising lawyers. Even if you find it hard to understand yourself – don’t feel stupid if you do, as it is the kind of material that plenty of trained lawyers find daunting – you are entitled to assume that the employment judge in your case will be able to cope with it.)

Sometimes when you ask a simple factual question, the witness doesn’t seem to want to answer it at all. The exchange might go something like this:

Q: Did you read the Claimant’s personnel file and previous appraisals before deciding to dismiss?

A: Well we took into account everything that was relevant and although the Claimant had performed quite well during his first few years, it was really the last period after the restructuring exercise that we were interested in…

Q: Did you read his previous appraisals?

A: What you’ve got to understand is, well of course we considered everything in the round, but when it came to it in the final analysis and of course bearing in mind the kind of exercise we were been going through [witnesses really do go on like this] it wasn’t about his previous performance, it was ultimately about the incident arising out of his response to the January 2007 reorganisation.

When the question – like this example – really does admit of a simple yes/no answer, it is fair to insist. Even then, a bad-tempered ‘Please answer yes or no – did you… (etc.)?’ can look bullying, and is probably not the best way of getting to the answer anyway. Better is something like:

Q: Does that mean no, you didn’t read it before deciding?

At the same time, do bear in mind that you are not necessarily entitled to insist on questions being answered with a simple yes or no: sometimes that will genuinely give a misleading impression, and the witness is entitled to explain why. For example:

Q: The date on this letter is 24 September isn’t it?

A: Yes, but that is not really..

Q [interrupting]: Thank you! So you…

Judge [interrupting the questioner]: Let the witness finish her answer.

A: The date shown at the top of the letter is 24 September, but that’s not the date it was written. This was a letter very like the letter I wrote to Mr Jones the previous week, so what I did was open that file, copy the contents, save into a new file and then edit it. Unfortunately I forgot to change the date.

If you were too impatient to ‘bank’ what you thought was a useful admission, you won’t have found out what the witness’s explanation is. One possibility is that the witness is making it up as she goes along. If so, then you don’t want her to give it for the first time under re-examination by her own side, because you will have lost your opportunity to probe further or challenge it. For example, given an explanation like the example above, you might (if you are fairly sure the witness is lying) usefully continue:

Q: So you say this document was actually created on 5 October?

A: Yes.

Q: So if you get a colleague to email it to the tribunal over the lunch adjournment, we will be able to see from its file statistics that it was created on 5 October?

A: Er… well I’m not sure anyone but me would be able to find it and anyway I’m not sure I was actually at work when I wrote it, I may have written it on my laptop which got stolen over Christmas…

By now the witness is looking fairly shifty.

The other possibility is that the witness’s explanation was a good one, with the added merit of being true. That’s bad news for you, obviously. But the likelihood is that if you don’t let her give it in cross-examination, she will be given the chance to clear it up in cross-examination anyway – so you might as well hear it now. At any rate it may help you focus on what matters in the rest of your cross-examination.

Sometimes, when you are cross-examining a witness, you get an answer that you are very pleased with: for example, if you want to discredit the witness, you will be delighted if he says something that can be refuted by a document in the bundle.

It is satisfying when this happens. But try not to look too much like a cat pouncing on a mouse as you reach for the bundle to score the point. Otherwise the witness may realise his mistake in time to limit the damage. So sit still and keep a poker face while you say something like ‘You’re reasonably sure of that are you?’ If you get a yes to that, you may want to box him in even further before he realises he’s in trouble: ‘You’d be likely to remember quite clearly because…?’ With luck, you’ll have got him to confirm his evidence beyond all hope of retraction or fudge before you take him to the page that proves him a liar.

Most legal documents are written with numbered paragraphs. For example:

1. Mr Smith worked for Grindles Ltd as an assembler. He was employed between 21st September 1998 and 3rd December 2007.
2. In September 2007 Mr Smith began experiencing difficulties with his left leg, which affected his mobility. His GP diagnosed him with early onset arthritis and referred him to a specialist consultation, Dr Hobbs.

The great advantage of this system is that it allows easy reference to specific parts of documents. If all of the witness statements have numbered paragraphs it is easy to identify individual parts of the evidence. This is extremely useful during the hearing. Witnesses can be referred to what they, or others, have said; the tribunal can be reminded of particular evidence and so on. And the same applies to other types of documents. It is useful to be able to reference parts of the ET1 or written submissions easily.

It is therefore well worth getting into the habit of using numbered paragraphs in any legal document other than a short letter.

There is nothing terribly complicated about doing this, but the following guidelines may help you avoid common pitfalls:

Use an automatic numbering system

Word processing programs, such as Microsoft Word, have automatic tools for numbering lists. It is worth spending a few minutes learning how to use them. This will save time and effort, since otherwise adding, deleting or splitting paragraphs means you have to manually renumber the whole document.

Minimise sub-paragraphs

The convention in legal documents is that sub-paragraphs are numbered as follows:

1. 3. Paragraph
1. 3.1. Sub-paragraph
1. 3.1.1 Sub-sub-paragraph

The problem with this is that it is easy to get yourself in a position where you frequently need to write or, worse, say things like “See paragraph 3.3.4.” This makes referring to paragraphs difficult and complex – defeating the point of paragraph numbering in the first place.

It also creates difficulties for the reader, because they have to keep track of the structure of your document.

The main cause of excessive sub-paragraphs is that the writer uses them wherever the next paragraph follows on from a previous idea. For example:

1. 9. The dismissal was automatically unfair, because the reason for dismissal was that Ms Hendricks had made a protective disclosure.
1. 9.1. A statement made by an employee to her employer is protected, if she reasonably believed that the information tends to show that a criminal offence has been committed or that a person has failed to comply with any legal obligation to which he is subject.
1. 9.1.1 Ms Hendricks’ statement that she believed that the companies accountant was siphoning money from client accounts and the evidence she produced in support of this allegation met this test.

There is no advantage to using sub-paragraphs in this way. The information would be better presented as paragraphs 9, 10 and 11, without indentation or sub-numbering.

A more appropriate use of sub-paragraphs is to present a list of information. For example:

1. 17. After raising a grievance Mr Jones was subject to further harassment on the basis of his race:
1. 17.1. On the 3rd December 2007 Mr Smith told him that he should “go back to where you came from”.
2. 17.2. On the 6th December 2007 Mr Smith, referring to Mr Jones’ work “This is rubbish, but what can I expect?”.

Do not number headings

Many people attempt to number headings as well as paragraphs. This is a mistake.

Firstly, it is very rare that you will want to refer anybody to a heading, so the numbering is unnecessary. Secondly, numbered headings make the sub-paragraph numbering problem worse. For example:

4. Unfair Dismissal

1. 4.1. Procedural Fairness

1. 4.1.1. The dismissal was procedurally unfair because the respondent failed to follow the statutory dismissal procedure.

Avoid bulletpoints

Bulletpoints are an alternative to paragraph numbers. For example:

• The dismissal was procedurally unfair.
• This dismissal was substantively unfair.
• The dismissal was an act of discrimination

The problem with bullets is that that you cannot refer to them directly. This forces you into phrases like “The second bullet from the bottom on page seven”. It is more sensible to stick to paragraph numbers.

Do not number quotes

You will often want to quote other documents in your writing. Quotes should be indented, but not numbered. For example:

23. The correct approach to mitigation of loss was set out by Lord Justice Sedley in Wilding v British Telecommunications [2002] ICR 1079:

1. In other words it is not enough for the wrongdoer to show that it would have been reasonable to take the steps he has proposed: he must show that it was unreasonable of the innocent party not to take them.

If you want to refer to the quote, you can say “The quotation at paragraph 22″.

After the respondent’s representative has finished cross-examining your witness, you have the chance to ask some further questions arising out the cross-examination. This is called ‘re-examination.’

The purpose of re-examination is to clarify matters on which you think the cross-examination of your witness has produced a misleading impression. It is not a chance to ask some more supplementary questions that you forgot to ask the first time.

To a non-lawyer, this can sound like one of those arcane rules that have no real function except to make the whole process complicated and intimidating. But it does actually have quite a sensible purpose. If you introduce new material after your witness has been cross-examined, that means there is material that the other side has not had a chance to challenge by cross-examination. So they will have to have another go after your re-examination. That way, the two sides could play ping-pong with the same witness indefinitely. The point of confining re-examination to matters raised in cross-examination is to make sure that once re-examination is completed, the witness can be released.

If you realise at this late stage that you have forgotten to ask something important of your own witness, don’t try to slip it in under the guise of re-examination – the tribunal is much more likely to be annoyed than fooled – just admit to the oversight and ask permission to correct it. Be ready to explain why the omitted material is important.

It is rarely a good idea to re-examine at length. The danger is that returning to a point on which you think your witness has given some damaging answers will simply serve to underline for the tribunal the weaknesses of your case. Your witness may well be tired and anxious by this time – further questioning on an area in which she previously got into difficulty may just make her look increasingly shifty.

As a rule of thumb, only re-examine to clarify a fairly straightforward factual misunderstanding. And bear in mind that the prohibition on leading questions remains in force: if you don’t think you can get the answer you want except by saying to the witness something like ‘The real explanation for this was p,q,r wasn’t it?’ don’t bother trying. The witness has to be able to give the explanation herself, or it is no use.